Dissenting judge says order of acquittal, discharge should be given to Najib

PUTRAJAYA - The previous panel of the Federal Court was likely to be unfair to Datuk Seri Najib Tun Razak when it heard and dismissed his appeal against conviction and sentence in SRC International Sdn Bhd case when he was not legally represented, says the sole dissenting judge.

Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli who chaired a five-member bench of the Federal Court said therefore, he was of the view that the proper order against Najib would be an order of acquittal and discharge for all the offences that he was charged with.

In his 78-page grounds of written judgment, he said it appears clear to him that there had been a miscarriage of justice that the applicant (Najib) had been deprived of a fair hearing.

He said there is no question that the former prime minister was charged with serious offences but it was important for an accused person to be legally represented to guarantee fairness of his trial or the appeal process.

"Justice is not only about the guilt or innocence of the accused person. It is also about according him a fair trial. The accused person should feel that he has had a fair trial.

"If he cannot be tried fairly for the offence that he is charged with, he should not be tried for it at all. Denying the accused of a fair trial is a grave form of injustice,” he said in his minority judgment.

Justice Abdul Rahman said it was only in exceptional cases that the trial or appeal should proceed without legal representation but in the present case, nothing exceptional has been shown to justify the hearing of the main appeals without legal representation.

He also cited the case of Sankar v The State [1994] UKPC 1, the incompetence of the accused’s counsel had deprived him of a fair trial.

The judge said, in that case, the Lord Woolf in delivering the judgment of the Privy Council said "in an extreme situation where the defendant is deprived of a fair trial then even though it is his own advocate who is responsible for what has happened, an appellate court may have to quash the conviction and will do so if it appears there has been a miscarriage of justice.”

"His Lordship was speaking in the context of the power of an appellate court in hearing an appeal from the decision of the trial court but I see no valid reason in law why it should not apply to an application for review under Rule 137 of the Federal Court Rules 1995, as the whole purpose behind the Rule is to prevent injustice to any person who is left with no other effective remedy,” said the judge.

He said this when allowing Najib’s application to review the decision of the previous panel of the Federal Court which upheld his conviction and 12 years’ jail sentence and fine for misappropriation of RM42 million in SRC International funds.

In the 4-1 majority judgment, the four judges who dismissed the former prime minister’s application were Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Rhodzariah Bujang and Datuk Nordin Hassan and Court of Appeal judge Datuk Abu Bakar Jais.

Justice Abdul Rahman further said that the earlier panel was also wrong in preventing Datuk Hisyam Teh Poh Teik from discharging himself from acting as counsel for Najib.

"Therefore, in law the applicant had no legal representation when his appeal was heard and dismissed on Aug 23 last year. It was also an undisputed fact that this was the first time the applicant changed his solicitors and counsel since his trial began in the High Court on April 3, 2019,” said the judge.

He added that, Najib’s record did not show that he was in the habit of changing counsel, let alone changing counsel to delay the proceedings, thus, the applicant cannot be faulted for listening to his lawyers’ advice.

Touching on the application for an adjournment of three to four months of the main appeals hearing by the applicant, Justice Abdul Rahman said it must therefore be taken to have been made in good faith and not a ploy or strategy by him to delay the hearing of the main appeals as alleged by the prosecution.

"What is pertinent to note in the whole scheme of things is that there was no allegation, proven or otherwise, that the seeking of an adjournment of three to four months was a ploy or strategy by the applicant to delay the hearing of the main appeals,” he said.

Yesterday, Najib failed in his final bid to get a review of his conviction, 12 years’ sentence and fine for misappropriation of RM42 million in SRC International Sdn Bhd funds.

Najib, 69, who is currently serving a 12-year jail term in Kajang prison, had sought to overturn the decision made by the previous Federal Court panel, led by Chief Justice Tun Tengku Maimun Tuan Mat on Aug 23 last year.

With yesterday's ruling, Najib will continue to serve out the remainder of his 12-year jail term in the Kajang prison. - BERNAMA